Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and
Willis, Judge.

U N P U B L I S H E D O P I N I O N

HARTEN, Judge

R.E.D., a juvenile, challenges his adjudication as delinquent on the grounds
that by allowing the state to amend the petition after a hearing, the juvenile
court violated the prohibition against double jeopardy and deprived him of the
right to prepare his defense. Because there was no error of law in permitting
the amendment, we affirm.

D E C I S I O N

Where the material facts are undisputed, a reviewing court need not
defer to the district court's application of the law. Hubred v. Control
Data Corp., 442 N.W.2d 308, 310 (Minn. 1989). The facts in this matter are
undisputed. R.E.D., then a seventh grader, told a hall monitor at his school
that he was going to "shoot up" the house of the assistant principal. The hall
monitor reported the statement to the assistant principal, who became disturbed
and reported it to the principal, who in turn notified the school's police
liaison officer.

The petition to adjudicate R.E.D. delinquent was headed TERRORISTIC THREATS
and bore the following language:

On or about _____________________, in Ramsey County, Minnesota,
___________________ aiding and abetting and being aided and abetted by another,
did threaten, directly or indirectly, to commit
_______________________________________, a crime of violence, with the purpose
to terrorize another and with reckless disregard of the risk of causing terror
in another, such action constituting TERRORISTIC THREATS, contrary to Minn.
Stat. § 609.713, subd. 1 and § 609.152, subd. 1(d).[1]

Whoever threatens * * * to commit any crime of violence with purpose to
terrorize another * * * may be sentenced to imprisonment for not more than five
years[.]

Minn. Stat. § 609.152, subd. 1(d) (1996), defines a "violent crime" as a
violation of any one of some 40 statutes.

At a June 1998 hearing, R.E.D.'s attorney attempted to prove that R.E.D. lacked
the "purpose to terrorize another" element of Minn. Stat. § 609.713, subd.
1. The direct examination of R.E.D. concluded:

"[D]id you stop and think that [your statement about shooting it up] would get
back to [the assistant principal]?"

"No."

"[D]o you feel that you should have been able to figure that out?"

"Yes."

"At the time you said it, were you attempting to frighten [the assistant
principal]?"

"No."

"Did you threaten to do any act at all toward [the assistant principal]?"

"No."

The phrase "drive-by shooting" was never mentioned.

At the end of that hearing, the court observed that the "any crime of
violence" element "is almost uncontroverted, * * * because attempting to shoot
a house, which is the statement, is a crime of violence, I assume." The court
asked R.E.D.'s attorney if he would agree with that statement, and the attorney
replied, "I would."

After this hearing, R.E.D.'s attorney argued that the "shoot it up" statement
was not a threat of a drive-by shooting. At the following hearing, the court
agreed:

The County Attorney * * * chooses to put in its Complaint what the crime of
violence is and, in this case, they happen to plug in the Petition what is
really kind of surplusage. * * *.

I mean, the drive by shooting is really surplus language. * * * I believe that
this is a crime of violence. It may not be drive by shooting and I'm finding
that it is not, but * * * does it fit another crime of violence. I suspect it
does, but I don't know what that would be.* * * But I am going to give [the
prosecutor] an opportunity to figure whether there is some amendment that can
be made to that Complaint * * *.

* * * *

I don't think there's any doubt but that "I'm going to shoot it up", if carried
out, shooting up a home would be a crime of violence of one sort or another.

The court concluded that R.E.D. had committed the offense of making a
terroristic threat.

R.E.D.'s attorney then moved for amended conclusions of law, contending that
finding that there was no threat of drive-by shooting was an acquittal and
permitting the amendment of the charge (1) resulted in a violation of double
jeopardy and (2) deprived R.E.D. of the ability to prepare adequately for the
hearing.

The Double Jeopardy Clause offers protection against a subsequent prosecution
for the same offense after an acquittal. State v. McKenzie, 542 N.W.2d
616, 618 (Minn. 1996). R.E.D.'s double jeopardy argument depends on his view
that the court acquitted him of terroristic threat when it found that saying
"I'm going to shoot it up" was not a threat of a drive-by shooting. But that
finding did not pertain to any element of Minn. Stat. § 609.713, subd. 1,
because the statute reads, "Whoever threatens * * * to commit any crime
of violence with purpose to terrorize another * * * may be sentenced to
imprisonment for not more than five years.["] (Emphasis added.). The finding
that R.E.D.'s threat did not apply to one particular crime was not an acquittal
of terroristic threat.

There is no statute designed specifically to deter and punish the threat
of drive-by shootings;[2] Minn. Stat. §
609.713, subd. 1, was designed to deter and punish threats of any crime of
violence. See State v. Murphy, 545 N.W.2d 909, 916 (Minn. 1996). (Minn.
Stat. § 609.713 is intended to deter and punish "the future act
threatened, as well as the underlying act constituting the threat").
Logically, the finding that R.E.D. did not threaten one particular crime cannot
equate to an acquittal. Absent R.E.D.'s acquittal of making a terroristic
threat, his double jeopardy claims fails.

R.E.D.'s claim that the amendment of the petition deprived him of the ability
to prepare for the hearing also fails. The hearing at which he testified
occurred before the court permitted amendment. R.E.D. made no attempt to
defend against a charge of threatening a drive-by shooting; his defense was
lack of intent, viz., he had not intended to cause fear. The subsequent
amendment of the petition made this defense more, not less, relevant.

We conclude that by permitting the amendment of the petition to bring it into
conformity with the facts and the statute the juvenile court neither violated
R.E.D.'s right against double jeopardy nor deprived him of the right to prepare
for trial.